On the morning of Friday, April 21, the Justices met to vote on the outcome of the case.
The issue is whether prevailing parents in a special education due process hearing can be reimbursed for their expert witness fees as a part of the costs.
Statute Amended to Include Attorneys Fees
Expert Witness Fees
The school district argued that the phrase “reasonable attorneys’ fees as part of the costs” is clear and unambiguous and does not include expert witness fees or consultant fees.
If a statute is unclear and is ambiguous, the U. S. Supreme Court may look to legislative intent for guidance and clarification. If the statute is not ambiguous, then the Court is supposed to look at the plain language in the statute.
The parents argued that when the statute was amended in 1986 to include the phrase “attorneys’ fees and costs”, the phrase “costs” included expert witness fees and also the costs of consultants who may not be called as witnesses.
Questions by the Justices
For example, Justice Kennedy asked, “Haven’t we previously said that Conference Committee Reports are of no value to us?”
By contrast, Justice Souter asked, “Don’t trial lawyers incur expenses when they hire experts?”
Justice Stevens asked the USA/USDOE attorney, “Since the statute is ambiguous, don’t we look to legislative intent?”
Justice Kennedy responded, “But isn’t the gravamen of your argument that the phrase is unambiguous?”
Justice Scalia countered, “But you don’t look at legislative history if it is not ambiguous.”
Later, Chief Justice Roberts said, “I understand that expert witness fees are often more expensive that attorneys’ fees. What prevented Congress from putting it in the statute [at that time]?”
Parent attorney David Vladeck responded, “Given the context and use of the word “costs” at that time, Congress thought that they put it in ... the statute must be looked at at the time of conception ...”
Justice Souter said “Doesn’t all this [discussion] mean that the statute is ambiguous, and given that, we must look at the legislative history?”
Chief Justice Roberts jumped in. “But if it is ambiguous, what about the restrictive nature of spending clause legislation [that statutes must be narrowly construed]?”
Justice Kennedy responded, “Couldn’t this case be the Magna Carta to establish a whole new breed of experts?” [Laughter]
Justice Ginsburg queried: “What about testing and evaluations, aren’t they costs?”
This is how the debate swung back and forth between the Justices.
After listening to oral argument, it was my sense that the Supreme Court will decide that the word “costs” does not include reimbursement for expert witness fees.
The vote on Friday, April 21, 2006, was probably 5-4 or 6-3, with the majority in favor of the school district.
Justices Stevens, Souter and Breyer appeared to align with the parents’ position. At one point, Justice Ginsburg seemed to align with the school district. Her subsequent questions seemed to favor the parents.
I expect the decision to be published before this term ends in June, 2006.